Introduction
Litigation, Arbitration, and Expert Determination have one thing in common – they are a controlled process leading to the decision-maker delivering a final judgment, award, or determination.
The difference with litigation and arbitration, however, is that the decision-maker (Judge or Arbitrator) is exercising judicial or quasi-judicial function conferred by Statute. The Expert Determiner’s power is conferred by Agreement and the application of the relevant rules agreed by the parties to apply to the process.
When dealing with amendments, the starting point for the Expert Determiner is to consider the Expert’s source of power. This is usually contained in the Expert Determination Agreement and/or the Rules of an Arbitral Institute applicable to the process.
For example, a clause that states ‘the Expert shall make such directions or rulings in relation to the process as he or she sees fit’ gives the Expert broad powers to deal with the expert determination process.
An application for amendments is, therefore, a procedural matter the Expert should have power to deal with it.
How then is the Expert to deal with amendments?
As a general approach, the Expert is not limited by the principles of case management in the same way as Judges or, to a lesser extent, Arbitrators are. Experts are usually required to ‘adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, to provide an expeditious cost-effective, and fair means of determining the dispute’ (see rule 5 IAMA Rules).
This is not to say that efficiency in the conduct of the expert determination and the costs consequences of allowing an amendment, in particular late amendment of Claims and Submissions or granting extensions of time for compliance with the process, are not relevant considerations for the Expert when dealing with such applications.
The usual approach is to allow the parties to come to agreement first amongst themselves. A party is entitled to have the real issues determined in an ‘expeditious cost-effective and fair’ process, so long as that there is no injustice to the other which is not compensable by an agreement as to costs.
Experts should always bear in mind considerations of fairness and justice between the parties while maintaining efficiency in the conduct of the process but he or she is not required to take into account the administration of justice generally as Judges have to or Arbitrators might be required to.
Kirby J in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 169-170 provide guidance of the sort of considerations applicable. Although these considerations relate to the administration of justice in court proceedings, they are instructive for Experts faced with late amendment application.
Conclusion
While each amendment application is different, the guiding questions for the Expert to consider are:
1. Whether the amendments are within the scope of the Expert Determination
Agreement?
2. What relevant consideration are to be weighed when deciding whether to grant
the amendments sought?
3. Whether the amendments might raise other legal questions, eg limitation of
action period?